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Expunge DHS Records – Court of Appeals Decision

For individuals that work in a field licensed by the Department of Human Services (DHS), trying to expunge DHS records is imperative if you have a criminal record. The DHS has a list of offenses – even if unproven in a criminal case – that can disqualify an individual from continuing their career. An expungement can seal this record from being used against you during a mandatory background check. When a person attempts to expunge DHS records, they can expect a fight. A recent Court of Appeals decision makes this perfectly clear.

In an unpublished opinion released this week, the Court of Appeals upheld a district courts order that split the baby if you will – it granted the expungement as to the court and BCA records, but denied the expungement for the DHS and Department of Health (MDH) records. In doing so, the petitioner essentially loses the expungement because the latter two records are most important since she worked in the health field. The basis for the decision must be understood and anticipated for future petitioners when trying to expunge DHS records.

The petitioner received a stay of adjudication – which means the person pled guilty (i.e. admitted to criminal conduct), but the guilty plea was vacated and the case was dismissed after one year of probation – to malicious punishment of a child and domestic assault charges. The petitioner waited the requisite year following her discharge from probation and sought an expungement. In this context, the State bears the burden of proof.

The DHS and MDH argued that they needed the records in order to complete future background checks, given that the petitioner worked in the health field and these offenses – namely, the admitted to facts – were sufficient to disqualify her from being licensed. In making these general arguments, the DHS and MDH relied specifically on the admitted to facts in pointing out the seriousness of the offense and that it was critical to have these facts when determining if the petitioner is fit to serve in the health field. The district court also considered that only a short period of time had passed since the offense – which is a factor courts must consider. And third, the petitioner made it known that she was seeking the expungement in order to become a PCA for her daughter. In pointing out these specific facts and connecting them to the twelve-factors the court shall consider, the DHS and MDH were successfully able to carry their burdens of proving that the public need for these records outweighed the benefits to the petitioner in having this record sealed.

While every decision is, by nature, case specific, this decision demonstrates why a petitioner must hire an experienced and skilled expungement attorney – particularly when you are trying to expunge DHS records. In our experience, the DHS will fight almost every petition. DHS’ opposing arguments have a consistent theme that we’ve successfully overcome in every case we’ve handled. But, this new court of appeals decision will bolster its arguments and likely lead to courts taking a harder and more careful look at the DHS opposition. Still, in reviewing this Order, there is plenty of proper analysis and arguments that can be made for petitioners seeking to expunge DHS records that can lead to a successful result.

Now, more than ever, you must contact an expungement attorney to successfully expunge DHS records.

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